Re: Models Who Don’t Have US IDs
In some parts of California OSHA passed laws like that. As far as IRS regulations go, a porn actor would not be classified as an independent contractor.
But, even if they are an independent contractor, they still need proper immigration docs.
Re: Models Who Don’t Have US IDs
Says who? Our accountant says an independent contractor is defined by the following:
Re: Models Who Don’t Have US IDs
[QUOTE=rawTOP;44890]Says who? Our accountant says an independent contractor is defined by the following: [LIST]
Once again, playing devil’s advocate. But, look at those two. Then add -
No Instructions. Independent contractors are not required to follow, nor are they furnished with, instructions to accomplish a job.
No time clock. Independent contractors set their own work hours.
Location. Independent contractors control where they work. If they work on the premises of the hiring company, it is not under that company’s direction or supervision.
Order of work. Independent contractors determine the order and sequence in which they will perform their work.
Here is an interesting link
http://www.spicejar.org/asiplease/archives/000254.html
Re: Models Who Don’t Have US IDs
in california, says the labor board and the EDD. i know a couple companies who fought it since the model decided on the time, brought his own clothes, decided what he wanted to do in the shoot, etc, but they lost and had to pay a large fine and do a bunch of stuff regarding their models being “hired” for the day as employees.
[quote=rawTOP;44890]Says who? Our accountant says an independent contractor is defined by the following:
Re: Models Who Don’t Have US IDs
In California, they are considered employees. And it has been through the courts many times. I don’t know of any cases where it has been challenged outside of California. (Probably since most porn has been filmed in California.)
But, most porn producers for the most part, even in California, treat their actors as contractors.
Bill talked about this a while back on GWW
http://forums.gaywidewebmasters.com/showpost.php?p=230318&postcount=25
Just looking at the IRS regs, I don’t see how an actor could be a contractor. Do you have him show up at your studio and NOT tell him what to do? Once you tell someone how to do their job, they are no longer a contractor.
Re: Models Who Don’t Have US IDs
I’m not in California, and Lloyd was talking about IRS regulations… I think everyone will agree California is a unique situation.
[QUOTE=abostonboy;44894]No Instructions. Independent contractors are not required to follow, nor are they furnished with, instructions to accomplish a job.
No time clock. Independent contractors set their own work hours.
Location. Independent contractors control where they work. If they work on the premises of the hiring company, it is not under that company’s direction or supervision.
Order of work. Independent contractors determine the order and sequence in which they will perform their work.
[/QUOTE]
Any accountant will tell you it’s always a judgment call - many people don’t fit either profile perfectly. The fact that they can turn down work, work when they want to work, and that the work is project oriented, and they work for multiple businesses puts them in the contractor category. When you look at that list of what defines a contractor - it’s the total balance of things. It’s not like one or two items makes you an employee - just the opposite - a few of those things makes you a contractor.
When Elliot Spitzer was NY Attorney General and Governor he really went after businesses for misclassifying employees as contractors. NY clearly only cares about whether payroll tax should be paid or not, and they want clear violations. Trust me, I’ve gotten a notice from them with fines totaling around $30,000 and discussed this at length with my accountant. (The fines were dismissed). So if a number of the stronger factors are in favor of independent contractor - they’ll leave you alone. Someone who works for you a few hours a year definitely isn’t something they’ll pursue. They want the big businesses who have armies of 35-50 hour/week employees classified as contractors. Or even little businesses with a few regular employees who didn’t classify any as employees (which is what they thought we were).
Re: Models Who Don’t Have US IDs
true, yet many other contractors are told how to do each individual job and are still legally considered contractors.
[quote=abostonboy;44897]In California, they are considered employees. And it has been through the courts many times. I don’t know of any cases where it has been challenged outside of California. (Probably since most porn has been filmed in California.)
But, most porn producers for the most part, even in California, treat their actors as contractors.
Bill talked about this a while back on GWW
http://forums.gaywidewebmasters.com/showpost.php?p=230318&postcount=25
Just looking at the IRS regs, I don’t see how an actor could be a contractor. Do you have him show up at your studio and NOT tell him what to do? Once you tell someone how to do their job, they are no longer a contractor.[/quote]
Re: Models Who Don’t Have US IDs
That is true. There are 20 factors and one basically has to weigh each one. It’s not cut and dry.
Re: Models Who Don’t Have US IDs
[QUOTE=rawTOP;44898]I’m not in California, and Lloyd was talking about IRS regulations… I think everyone will agree California is a unique situation.
Any accountant will tell you it’s always a judgment call - many people don’t fit either profile perfectly. The fact that they can turn down work, work when they want to work, and that the work is project oriented, and they work for multiple businesses puts them in the contractor category. When you look at that list of what defines a contractor - it’s the total balance of things. It’s not like one or two items makes you an employee - just the opposite - a few of those things makes you a contractor.
When Elliot Spitzer was NY Attorney General and Governor he really went after businesses for misclassifying employees as contractors. NY clearly only cares about whether payroll tax should be paid or not, and they want clear violations. Trust me, I’ve gotten a notice from them with fines totaling around $30,000 and discussed this at length with my accountant. (The fines were dismissed). So if a number of the stronger factors are in favor of independent contractor - they’ll leave you alone. Someone who works for you a few hours a year definitely isn’t something they’ll pursue. They want the big businesses who have armies of 35-50 hour/week employees classified as contractors. Or even little businesses with a few regular employees who didn’t classify any as employees (which is what they thought we were).[/QUOTE]
I think the bottom line is no one really knows for sure as no one (that I know of) has ever challenged it in a court in NY.
California is unique in that it is the porn capital of the US. And it the ONLY state that has a precedent that makes it legal by a 1988 decision of the California Supreme Court (California vs. Freeman.)
In some states filming porn could be illegal. Now, that is a First Amendment blow. New York Penal Law defines a prostitute as a person “who engages or agrees or offers to engage in sexual conduct with another person in return for a fee.” A pornographic actor does just that: Like a more typical prostitute, he or she engages in sex in return for a fee.
Woof!
Re: Models Who Don’t Have US IDs
but… a prostitute isn’t engaging in free expression, unless what s/he is doing is done publicly and is labeled as performance art, in which case you’d probably have a hard time busting it as prostitution. (you’d bust it instead as public indecency.) So someone engaged in making a video, while they are engaged in sex for money, is also creating free expression, and it is that expression that is protected under the First Amendment, and that’s why there’s a distinction between prostitution and making porn. I seriously doubt any intelligent DA is going to try to make a case that shooting porn is prostitution.
I also seriously doubt that saying the immigration law infringes on free speech would get you anywhere. If it did, it would open up a million loopholes in which a US employer could employ illegal aliens.
It’s also really clear that payment or lack of payment has absolutely no bearing on 2257; the applicable portion of the law doesn’t say a word about compensation, or even (directly) about immigration; it simply says that an ID is required for any performer participating in a photo shoot involving sexually explicit conduct, and that the only acceptable ID for a non-US citizen, when the shoot is done in the US, is an appropriate foreign ID plus a US-issued work visa, or a US-issued ID. Nothing to do with immigration law.
If you want to comply with 2257 with a non-US citizen, take your non-US citizen to one of the 4 or 5 states that will issue drivers licenses or nondriver IDs to non-US residents. Voila! You have an ID that meets the definition of 2257 and your content is legal.
Now… it’s remotely possible that immigrations might come after you for using an undocumented worker, but I think there’d be a good defense; the fact it’s contract labor in every state but California, and you are not required to document citizenship for contractors. And I seriously doubt that immigrations is going to want to fuck with some porn producer that has 3 models who made $500 shooting porno; they have much better things to do.
Re: Models Who Don’t Have US IDs
[QUOTE=gaybucks_chip;44905]
Now… it’s remotely possible that immigrations might come after you for using an undocumented worker, but I think there’d be a good defense; the fact it’s contract labor in every state but California, and you are not required to document citizenship for contractors. [/QUOTE]
Independent contractors need a visa or an I-94 if they are working in the US.